Citation Nr: 0934877
Decision Date: 09/17/09 Archive Date: 09/23/09
DOCKET NO. 06-24 984A ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Boston, Massachusetts
THE ISSUES
1. Entitlement to service connection for tinnitus.
2. Entitlement to service connection for temporomandibular
joint syndrome (claimed as jaw problems).
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
A. P. Simpson, Counsel
INTRODUCTION
The Veteran served on active duty from June 2000 to August
2000, and from February 2003 to May 2004.
This appeal to the Board of Veterans' Appeals (Board) arises
from an August 2005 rating decision in which the RO denied
service connection for tinnitus and for "jaw problems."
In the August 2005 rating decision, the RO also denied
service connection for bilateral hearing loss. The Veteran
filed a notice of disagreement for this claim, and the July
2006 statement of the case included this issue. However, in
the Veteran's VA Form 9, Appeal to the Board, he limited his
appeal to the claims for service connection for tinnitus and
jaw problems. Thus, the claim for service connection for
hearing loss is not part of the current appeal. See
38 C.F.R. § 20.200 (2008) (appeal before Board consists of
timely filed notice of disagreement in writing, and after the
issuance of a statement of the case, a substantive appeal).
FINDINGS OF FACT
1. All notification and development action neeed to fairly
adjudicate each claim on appeal has been accomplished.
2. There is competent and probative evidence of in-service
ringing in the ears, continuity of symptomatology, and a
current diagnosis of tinnitus.
3. There is competent and probative evidence of in-service
jaw pain, continuity of symptomatology, and a current
diagnosis of temporomandibular joint syndrome.
CONCLUSIONS OF LAW
1. Resolving all reasonable doubt in favor of the Veteran,
the criteria for service connection for tinnitus are met.
38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102,
3.303 (2008).
2. Resolving all reasonable doubt in favor of the Veteran,
the criteria for service connection for temporomandibular
joint syndrome (claimed as jaw problems) are met.
38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102,
3.303 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
A. Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA) and the
implementing regulations impose obligations on VA to provide
claimants with notice and assistance. 38 U.S.C.A. §§ 5102,
5103, 5103A, 5107, 5126 (West 2002 & Supp. 2008)); 38 C.F.R
§§ 3.102, 3.156(a), 3.159, 3.326(a) (2008).
Given the favorable disposition of each claim, the Board
finds that all notification and development action neeed to
fairly adjudicate each claim on appeal has been accomplished.
B. Analysis
Service connection is warranted where the evidence of record
establishes that a particular injury or disease resulting in
disability was incurred in the line of duty in the active
military service or, if pre-existing such service, was
aggravated thereby. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.
Service connection may also be warranted for any disease
diagnosed after discharge, when all the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d).
To prevail on the issue of service connection, there must be
medical evidence of a current disability; medical evidence,
or in certain circumstances, lay evidence of in- service
occurrence or aggravation of a disease or injury; and medical
evidence of a nexus between an in-service injury or disease
and the current disability. See Hickson v. West, 12 Vet.
App. 247, 253 (1999).
In adjudicating a claim for VA benefits, VA is responsible
for determining whether service connection is warranted for a
disability, VA is responsible for determining whether the
evidence supports the claim or is in relative equipoise, with
the veteran prevailing in either event, or whether a
preponderance of the evidence is against the claim, in which
case the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R.
§ 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).
The service treatment records show the Veteran reported he
was exposed to loud noises "often." See item 14 of the
Post-Deployment Health Assessment, dated April 2004. He also
reported he had "medical or dental problems that developed
during deployment." Id. at Health Care Provider Review.
This document, along with the Veteran's credible statements
about ringing of the ears and the onset of jaw pain starting
in service, is evidence of in-service onset of such symptoms.
Within three months of the Veteran's discharge from service,
he complained of jaw pain. See August 11, 2004, VA treatment
record. Later that month, the Veteran stated that last
October, while he was stationed in Iraq, he had an episode of
difficulty in opening his mouth. See August 20, 2004, VA
treatment record. He stated there was significant pain and a
loud "pop" and that since that time, his left
temporomandibular joint would pop loudly when he would open
and close his mouth. He was subsequently diagnosed with
temporomandibular joint syndrome, and VA treatment records
show that VA provided the Veteran with an occlusal guard due
to continued pain. See April 18, 2005, VA treatment record.
As to tinnitus, the Veteran was provided with a VA
examination in January 2005. He reported the onset of
tinnitus since at least April 2004. He denied that it was
persistent, but stated it was recurrent. When asked what the
"most likely etiology of the tinnitus" was, the examiner
responded, "Unknown."
Considering the evidence of record in light of above-stated
legal authority, and affording the Veteran the benefit of the
doubt, the Board finds that service connection for tinnitus
and for temporomandibular joint syndrome is in order. The
reasons follow.
As for the claim for service connection for tinnitus, the
Veteran is competent to report ringing in the ears while in
service and continued ringing of the ears since service, as
such are symptoms that are observable to the Veteran. While
the examiner determined the etiology was "Unknown," the
examiner did not state that the etiology was not due to
service. The Board finds that it cannot disassociate the
ringing of the ears the Veteran reports started in service
and the ringing of the ears (tinnitus) diagnosed less than
one year following the Veteran's discharge from service,
particularly when the Veteran has reported that he has had
such symptoms from April 2004 until the present time. The
Veteran's statements are entirely credible. Thus, with
resolution of all reasonable doubt in the Veteran's favor,
the criteria for service connection for tinnitus are met.
As for the claim for service connection for temporomandibular
joint syndrome, the Veteran is competent to report the onset
of jaw pain in service and continued jaw pain since service.
The VA treatment records substantiate the Veteran's
allegations, as the Veteran was seen within months of being
discharged from service and reported the onset of the pain in
October 2003. The Board finds such allegations entirely
credible. In the January 2005 VA examination report, the
examiner diagnosed history of temporomandibular joint
syndrome, which would imply that the Veteran did not have
temporomandibular joint syndrome anymore. However, in March
2005 VA treatment record, it was noted the Veteran's
temporomandibular joint syndrome symptoms were not resolving
and that the Veteran was going to be given an "occlusal
splint." He was fitted for such device at that time. A
subsequent March 2005 treatment record shows the Veteran was
given the splint and told to wear it. An April 2005 VA
treatment record shows that a VA prosthodontist checked the
positioning of the device and instructed the Veteran in its
use and care. This is the last VA treatment documented in
the claims file.
Based upon the Veteran's assertions of the onset of jaw pain
in October 2003, the VA treatment records showing continued
pain through April 2005, and the Veteran's statements in his
VA Form 9, which was received in 2006, wherein he continued
to complain of pain, the Veteran has established almost a
three-year period of jaw pain. The Board points this out
because a VA treatment record includes a notation that the
Veteran's jaw pain was acute. See February 16, 2005 VA
treatment record. The Board finds that three years of jaw
pain is not an acute symptom.
Given the competent and probative evidence of in-service jaw
pain, continuity of symptomatology, and current diagnosis of
temporomandibular joint syndrome, and resolving all
reasonable doubt in the Veteran's favor, service connection
for temporomandibular joint syndrome (claimed as jaw
problems) is warranted.
ORDER
Service connection for tinnitus is granted.
Service connection for temporomandibular joint syndrome is
granted.
________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs